Ontario Premier Doug Ford’s use of section 33 of the Canadian Charter of Rights and Freedoms—the notwithstanding clause—is absolutely justifiable.
Over the past week many people have been very outspoken about the Ontario government’s recent use of the notwithstanding clause, both in favour and against. The notwithstanding clause is a section in the Charter which allows the Canadian Parliament or provincial legislatures to override certain other portions of the Charter.
The fact is, Premier Ford and the Progressive Conservative (PC) government were elected to reduce the size of government and make the government work more efficiently for the people. This week, the Ontario legislature was recalled to reintroduce a bill intended to cut the size of the Toronto city council in half, called the Better Local Government Act, following the recent court ruling. It is not very often that partisan legislators are given the opportunity to vote freely on a bill, but Ford gave his caucus a free vote on the bill.
I support the Premier’s decision to invoke the notwithstanding clause. There are two things that are important to consider: First, should the provincial government have the right to introduce this legislation? Second, does invoking the notwithstanding clause change the initial intent of the bill that was already passed?
In answer to the first question, it is clear that municipal governance falls exclusively under provincial jurisdiction. Section 92 of the Constitution Act of 1867 specifically grants power over municipalities to provincial governments. The judge’s ruling in the court case went directly against what the electorate voted for and therefore seems to me like a dangerous overreach. Nevertheless, this situation is what was foreseen by Canada’s Premiers in 1982, when they advocated overwhelmingly for the inclusion of Section 33 in the Constitution Act of 1982—also known colloquially as the notwithstanding clause.
With the exception of New Brunswick, every Canadian province wanted the clause as a “safety valve” for provincial legislatures against overreaching judges. The Ontario government finds itself in such a situation today. Therefore, the Ontario government is using a legal tool available to all provinces to protect their ability to pass laws under provincial jurisdiction, as the members of provincial parliament were elected to do.
Second, members of the legislature have already voted and debated the merits of this bill once. My knowledge of Toronto municipal affairs is limited, having never lived there myself. However, members of provincial parliament (MPP) are often required to vote on issues with which they have little experience. In the PC caucus, several MPPs are from Toronto and a few have experienced the gridlock of Toronto city council first hand, including our Premier. The initial intent of the bill was to improve municipal democracy in Toronto, and that is unchanged.
The premier said that this move will save Toronto taxpayers $25 million. This money is desperately needed for other priorities, such as transit. The $25 million in savings would come from half the amount of councillors sitting on council, half the staff and benefits for 22 councillors rather than 44. This move will ensure that every Torontonian has equal representation at City Hall. Currently, many wards are unevenly distributed. As a result, residents of wards with smaller populations have a vote worth more than residents of larger wards. The new wards with line up with federal and provincial riding boundaries, ensuring Torontonians an equal vote.
The Premier is making the right call by invoking the notwithstanding clause—and although never done before throughout the history of the Ontario legislature—it is constitutional and completely justifiable.
Photo by Jasmine Foong
